1.Whether the U.S. Court of
Appeals for the Fourth Circuit correctly applied well-established precedent
regarding a claim of retaliation for the exercise of First Amendment rights and
qualified immunity for public officials.

TABLE OF CONTENTS

Page

QUESTION
PRESENTED.................................................... i

Respondent Notra Trulock, III (“Trulock”),is the former Director of the Office of Intelligence for the
Department of Energy (“DOE”).Appendix
to Petitioners’ Br. (“Pet’r App.”) at 48a.Respondent Linda Conrad (“Conrad”) was Trulock’s former Executive
Assistant and currently is the Executive Assistant to Lawrence Sanchez
(“Sanchez”), the current Director of Intelligence at DOE.Pet’r App. 50a.Respondents shared a Falls Church, Virginia townhouse and
computer located there.Id.

When Trulock was Director of the Office of Intelligence for the DOE, he
uncovered substantial, credible evidence that Chinese espionage agents had
penetrated the U.S. nuclear weapons laboratories, including Los Alamos National
Laboratory, and had stolen U.S. nuclear weapons secrets including, but not
limited to, the design of the W-88 thermonuclear warhead.Pet’r App. 48a.A U.S. Intelligence Community Damage Assessment, completed in
1999, largely validated Trulock’s conclusions.Id.

In the interim, however, Trulock gave repeated warnings to The White
House, Federal Bureau of Investigation (“FBI”), and Central Intelligence Agency
(“CIA”) about these substantial breaches of national security, but these
warnings were ignored.Pet’r App.
49a.In early 2000, Trulock decided to
write a “personal reflections-type” manuscript describing his frustrating
experiences as a “whistleblower.”Id.
This manuscript included criticism
of the White House, FBI and CIA for their mishandling and cover-up of the
Chinese spy threat, as well as the compromise of national security at the
nuclear weapons laboratories.Id.

Trulock took painstaking care not to include any classified information
in the manuscript and, in March 2000, sent the document to DOE for a security
review before trying to have the manuscript published.Id. DOE, however, declined to review the manuscript.Trulock also submitted to, and passed, a
polygraph examination intended to reveal any disclosure of classified
information.Id.

National Review decided
to publish an article by Trulock, excerpted from his manuscript, in its July
31, 2000 edition.Id. The article, entitled “Energy Loss,” was in
circulation by early July 2000, prior to the FBI’s retaliatory search and
seizure that violated Trulock’s First Amendment rights.Id.Shortly after this article was in circulation, on July 14, 2000,
Conrad was confronted by Director Sanchez, her supervisor, at work.Pet’r App. 50a.Director Sanchez, purporting to act on behalf of the FBI, told
her that the FBI wanted to question her about Trulock and that they had a
search warrant to search her townhouse that she shared with Trulock.Id. In fact, the FBI had no search warrant for Conrad’s townhouse.

Director Sanchez, still purporting to act on behalf of the FBI, further
told Conrad that if she did not cooperate with the FBI, they would break down
her front door to execute the warrant, that the media would be present, and
that the police had been alerted to the fact that the search was about to take
place.Pet’r App. 50a. In fact, none of this was true.Believing what Director Sanchez had told her
was true, Conrad became extremely upset and scared, and began to shake.She broke down in tears and remained
extremely upset and in tears all day.Id.

Throughout the day, Director Sanchez had several telephone calls with
FBI Assistant Director for National Security Neil Gallagher and FBI Inspector
in Charge Steve Dillard, who is the head of the FBI’s Chinese espionage
investigation task force, to discuss the interrogation of Conrad and search of
her and Trulock’s home.Pet’r App.
51a.DOE Secretary Richardson even
contacted FBI Director Louis Freeh to discuss the interrogation and search.Id.

Despite the DOE’s obvious complicity in the retaliatory search, DOE had
made no criminal referral to the FBI regarding Trulock’s manuscript, as DOE
Secretary Bill Richardson later admitted to Congressman Dan Burton, Chairman of
the House of Representatives Government Reform Committee.Id.At approximately 4:00 p.m. on July 14, 2000, FBI Agents Brian Halpin
(“Halpin”) and Steve Carr (“Carr”), acting under the direction, instruction and
orders of FBI Director Louis Freeh, FBI Assistant Director Gallagher and FBI
Inspector in Charge Dillard, arrived at DOE headquarters, led Conrad to a conference
room, closed the door and began to interrogate her.Id. The
interrogation lasted until 7:15 p.m. or 7:30 p.m.Pet’r App. 53a.During
the interrogation, Conrad was not allowed to make any out-going telephone
calls.Id.Although she was permitted to receive two telephone calls,
the two FBI agents did not allow Conrad to take these calls in private but,
instead, the agents listened in on Conrad’s side of the conversation.Id.

Throughout the interrogation, Conrad was visibly upset and
fearful.Pet’r App. 50a.While Conrad was visibly upset, Agents
Halpin and Carr presented her with a piece of paper to sign.Id. at 52a.Halpin and Carr never advised Conrad of her constitutional rights
or that she did not have to consent to the interrogation or the subsequent
search.Id. Believing that the FBI had a search warrant,
as Director Sanchez had falsely told her, and that the FBI would break down the
door to her home in the presence of the media and police if she did not
cooperate, as Director Sanchez also had falsely told her, she signed the piece
of paper without reading it and without knowing what was written on it.Id.

After Halpin and Carr had finished their interrogation of Conrad, they
followed her to her home and immediately followed her into her home.Pet’r App. 54a.Trulock was present when the agents entered the home.Id. He asked to see the agents’ search warrant.Id. The agents stated that they did not have a search warrant and that
Conrad had consented to their search of the computer he shared with Conrad and
on which he maintained his private files separate and password-protected from
Conrad’s files.Id. Trulock was never advised of his
constitutional rights nor did he freely or voluntarily give his consent to the
search of his home or his files maintained on the computer he shared with
Conrad.Pet’r App. 55a.Conrad and Trulock understood that they
would not, and could not, access each other’s personal files on the computer’s
hard drive.Id. at 54a.

With the assistance of an FBI computer specialist, Halpin and Carr
accessed Trulock’s personal password-protected files and seized them by taking
the computer’s hard drive.Id. at
56a.The computer’s hard drive – which
was just recently returned to Respondents after being held for more than two
years – contained personal banking, billing, checking, financial and tax
information, and approximately one year’s worth of research by Trulock
concerning a genetic disorder from which his son suffers.Id. at 58a.

CIA Director George Tenet has since admitted to Chairman Dan Burton, in
reference to the retaliatory search and seizure here, that “it looked like
somebody has been wronged.”Id. at
57a.On July 28, 2000, Respondents’
attorneys sent a letter to FBI Director Freeh, by facsimile and hand delivery,
asserting that the FBI had violated Trulock’s and Conrad’s civil rights and
requesting a conference to try to resolve them and avoid the necessity of a
lawsuit.Id. at 59a.Despite confirmation of the FBI’s receipt of
this letter, neither Freeh nor anyone else from his office ever responded to
this letter.Id. at 60a.

On the same day, July 28, 2000, Director Sanchez told Conrad that if
she proceeded with a lawsuit, he would deny telling her the FBI told him it had
a warrant to search her home.Id. Director Sanchez also told Conrad that he
would make his denial to protect the “Bureau,” that she would be “branded”
forever, and that her career would be ruined.Id.

Subsequently, the district court dismissed Trulock’s First Amendment
retaliation claim, as well as Respondents’ Fourth Amendment claims.Order and Memorandum Opinion (September 22,
2000).Pet’r App. 37a-42a.The U.S. Court of Appeals for the Fourth
Circuit (“Court of Appeals”) reversed the district court as to the First
Amendment claim, finding that more than sufficient facts had been alleged for
the case to proceed.Trulock v.
Freeh, 275 F.3d 391 (4th Cir. December 28, 2001).Pet’r App. 37a.-42a.The Court of Appeals subsequently denied
Petitioners’ motion for rehearing and rehearing en banc.289 F.3d 829; Pet’r App. 1a-3a.

Petitioners sought and received from this Court an extension of time to
file a petition for a writ of certiorari, apparently to allow the Solicitor
General additional time to assess whether such a petition was warranted.After the Solicitor General declined the
opportunity to bring this case, Petitioners obtained new counsel and filed a
petition for a writ of certiorari.

REASONS FOR DENYING THE WRIT

The Court should decline to grant the petition for a writ of certiorari
(“Petition”) because: (1) the Court of Appeals’ decision is fully consistent
with the decisions of this Court relating to suits against federal officers in
their personal capacity, articulated most recently in Crawford-El v. Britton;
and (2) no significant split exists between the federal Courts of Appeals
regarding the elements of a First Amendment retaliation claim.Accordingly, the Petition should be denied.

Petitioners argue that the Court of Appeals disregarded the pleading
requirements for actions against federal officials in their personal capacities.According to Petitioners,the Court of Appeals supposedly held that
“Respondents need not allege any factual basis” for a First Amendment
retaliation claim, that only a “mere inference” that a constitutional
violation occurred was necessary.Pet’r
Br. at 8 (emphasis in original).This
is simply not what the Court of Appeals did or held.See 275 F.3d at 405.

The Court of Appeals’ decision relies exactly on the kind of “specific,
non-conclusory factual allegations” recommended by this Court in Crawford-El
v. Britton, 523 U.S. 574 (1998) (“Crawford-El”).The Court of Appeals correctly recounted the
following specific facts alleged in the Complaint:

1.Trulock’s
article was published in early July;

2.The article was
highly critical of the White House, the CIA, the DOE, and the FBI, the agency
that executed the search;

3.The search of
Trulock’s home occurred on July 14;

4.No criminal
referral was issued by DOE for the FBI to begin an official investigation;[1]

5.Sanchez told
Conrad, on behalf of the FBI, that there was a search warrant when none
existed; and

6.Sanchez later
told Conrad that, if she initiated a lawsuit, he would deny telling Conrad that
the FBI claimed to have a search warrant in order to protect the “Bureau.”

Based on these facts (accepted as true and viewed together), the Court
of Appeals decided that it “could not conclude beyond all doubt that Trulock
can prove no set of facts in support of his claim [of retaliation] that would
entitle him to relief.”Pet’r App.
20a.The only “inference” drawn by the
Court of Appeals – again when assuming all these facts were true – was clearly
based on these six specific and non-conclusory allegations in the
Complaint.Thus Petitioners are simply
in error when they assert that the Court of Appeals’ decision was based on a
“mere” inference.

The numerous and detailed facts contained in the Complaint more than
adequately allege a causal link between Trulock’s publication of his article
and the almost immediate retaliation by Petitioners.Petitioners note that this Court’s recent decision in Crawford-El
extensively examined the issue of qualified immunity for public officials.The opinion in Crawford-El stands for
the proposition that no special pleading rules exist in cases of constitutional
claims alleging improper motive.Crawford-El, 523 U.S. at 597.Thus, under Crawford-El, Respondents’ Complaint more than
satisfies the traditional pleading requirement that a complaint “give the
defendant fair notice of what the plaintiff’s claim is and the ground upon
which it rests.”Conley v. Gibson,
355 U.S. 41, 47 (1957).Consistent with
this Court’s rulings, the Court of Appeals appropriately reviewed Respondents’
Complaint to determine whetherit was
clear that no relief could be granted under any set of facts consistent with
the allegations.Hishon v. King
& Spalding, 467 U.S. 69, 73 (1984).The Court of Appeals found that the Complaint stated a claim for
retaliation when it appropriately accepted “the material facts alleged in the
complaint as true and construe[d] all reasonable inferences in the
plaintiff's favor.”Hernandez v.
Coughlin, 18 F.3d 133, 136 (2d Cir. 1994) (emphasis added).At each step, the Court of Appeals followedthe procedure consistent with this Court’s
decision in Crawford-El.

Petitioners also contend that, by
“substituting its judgment for that of the district court,”the Court of Appeals erred regarding the
sufficiency of Respondent’s claim.Pet’r Br. at 9.Petitioners cite
Crawford-El concerning the discretion to be afforded to district courts
regarding “management of the factfinding process” to argue that the Court of
Appeals should have deferred to the legal judgment of the district court.Petitioners quote Crawford-El completely
out of context as Crawford-El is only referring to district courts’
experience managing discovery, not their expertise evaluating the legal
sufficiency of claims.Crawford-El nowhere
states that appellate courts should defer or subordinate their legal judgment
to that of district courts in First Amendment retaliation cases.523 U.S.at 600-601.In their own brief to the Court of Appeals,
Petitioners argued that an appellate court’s standard of review for a district
court’s ruling is “de novo.”See
Brief for Appellees at 10.Thus it is
curious, and incorrect, that Petitioners now argue that the Court of Appeals
“inappropriately” substituted its judgment for the district courts’.

Petitioners also suggest that the
Court of Appeals’ decision may indicate confusion over the application of Crawford-El,
and that a failure by this Court to grant certiorari and clarify Crawford-El
“will spawn confusion in the lower courts.”Pet’r Br. at 14.Petitioners do not cite any examples of other appellate or district
court cases in which courts struggle to interpret Crawford-El or state
that its holdings are confusing.Petitioners do not assert that a split has emerged between various
circuits in their interpretation of Crawford-El.

To the contrary, courts have
understood and widely applied the holding in Crawford-El.For example, the Sixth Circuit recently
examined and applied Crawford-El in a First Amendment retaliation
case.Goad v. Mitchell, 297 F.3d
497 (6th Cir. 2002).In its
opinion, the court emphasized that “specific, nonclusory allegations of fact
that plaintiffs may be required to assert to establish improper motive need not
constitute direct evidence of improper motive.”Id. at 505.In
fact, the Sixth Circuit approvingly cited the Court of Appeals decision in this
case for the proposition that facts that show “circumstantial evidence of
improper intent” are sufficient to survive a motion to dismiss in a retaliation
claim.Id.

Moreover, if this Court were to
accept Petitioner’s invitation to re-examine Crawford-El and heightened
pleading requirements, it would be much more likely to create the confusion
that Petitioners fear.Numerous courts
have just recently abandoned heightened pleading requirements in reliance on Crawford-El.See McCook v. Springer, No. 01-2157,
2002 U.S. App. LEXIS 15875 (10th Cir. Aug. 5, 2002) (“We recently
held that our heightened pleading requirement does not survive the Supreme
Court’s opinion in Crawford-El v. Britton” (citing Patel v. Wooten,
2001 U.S.App. LEXIS 15621, No. 00-1187
(10th Cir. July 12, 2001 overruling Gehl v. Coby, 63 F.3d
1528, 1535 (10th Cir. 1995); Currier v. Doran, 242 F.3d 905,
916 (10th Cir.), cert. denied, 122 S. Ct. 543 (2001) (“We
conclude that this court’s heightened pleading requirement cannot survive Crawford-El).Even if Petitioners were right that some
part of Crawford-El needs to be clarified, this Court should wait until
such an issue fully materializes.This
case is not the appropriate vehicle for any such clarification.Hence, a writ of certiorari in this case is
not warranted.

Finally, Petitioners quibble with
the Court of Appeals’ decision by stating that it did not specifically find
that the Complaint alleged that Trulock’s article was entitled to First
Amendment protection.Pet’r Br. at
12.In fact, the Complaint clearly
alleges that Trulock was entitled to First Amendment protection and that his
First Amendment rights were violated by retaliating for the publishing of the
article.Pet’r App. 61a, ¶¶ 75-78.

Petitioners take issue with the
Court of Appeals’ analysis of Petitioners’ qualified immunity defense, arguing
that the court erred in finding sufficient specific and non-conclusory facts
included in the Complaint.See
Saucier v. Katz, 533 U.S. 194, 201 (2001) (a court must consider: (1)
whether the facts alleged show a violation of a constitutional right; and (2)
whether it is clear that the conduct was unlawful in the situation).

As described in Section I., supra,
the Complaint alleges ample specific and non-conclusory facts to establish a
violation of a constitutional right.As
the Court of Appeals correctly concluded, these facts allege a clear causal
link between the publishing of the article and the FBI search.[3]

Petitioners argue that even if the Court of Appeals
appropriately moved past the initial inquiry, it erred in determining that
Trulock’s constitutional right was clearly established.Petitioners assert that the Court of
Appeals’ finding that Petitioners were entitled to qualified immunity with
respect to Respondents’ Fourth Amendment claim is inconsistent with its finding
that the FBI agents were not entitled to qualified immunity with respect to the
First Amendment retaliation claim.This
argument is without merit.The Court of
Appeals’ finding that Petitioners were entitled to qualified immunity with
respect to the Fourth Amendment claim was premised on the conclusion that “a
reasonable officer” in that position would not have known that a search of
Trulock’s password-protected computer files without his consent would violate
clearly established law.275 F.3d at
399.On the other hand, as to the
First Amendment claim, any FBI agent reasonably would have known that a
retaliatory search and seizure would violate clearly established law
prohibiting such retaliation against an individual for speaking critically of
the government.Importantly, this is
true regardless of whether the search was legal or illegal, because it has long
been clearly established that “[r]etaliation by a public official for the
exercise of a constitutional right is actionable . . . even if the act, when taken
for different reasons, would have been improper.”Mt. Healthy City School Dist. Bd. of Education v. Doyle,
429 U.S. 274 (1977).The same factual
allegations in the Complaint that create a reasonable inference of a
retaliatory motive also are grounds for denying qualified immunity to the
Petitioners here, because if the FBI agents had a retaliatory motive in
executing the search, then, ipso facto, the FBI agents reasonably knew
they were violating Trulock’s First Amendment rights.

III.NO CONFLICT AMONG THE CIRCUITS JUSTIFIES GRANTING THE WRIT FOR
CERTIORARI.

Petitioners claim that the Court of Appeals’ decision
regarding the elements of a First Amendment retaliation claim are in conflict
with other federal Courts of Appeals.This claim does not justify the issuance of a writ for two reasons.First, the subject of the circuit split,
the elements of a First Amendment retaliation claim, is not at issue in the
present case.Second,the case law Petitioner cites does not
indicate that a conflict actually exists.

The key issues before this Court involve the pleading
requirements for a First Amendment retaliation claim, as governed by Crawford-El,
and the application of the doctrine of qualified immunity.At no point have Petitioners argued the
Court of Appeals adopted a flawed test to demonstrate a First Amendment
retaliation claim.Petitioners also do
not assert that the circuit split would have resulted in a different outcome
had this case arisen in a different circuit.Moreover, Petitioners point to no evidence of confusion among the courts
or unjust outcomes as a result of the alleged split.

Petitioners cite to several cases from different circuits
to demonstrate that this alleged conflict exists.A thorough reading of these cases, however, demonstrates that no
conflict exists.Most notably,
Petitioners misstate and misuse the Fifth Circuit case Keenan v. Tejeda,
290 F.3d 252 (5th Cir. 2002) – Petitioners’ primary evidence of the
alleged circuit split.Pet’r Br. at
17-18.Keenan is used as evidence that
the Fifth Circuit, along with the First, Second, and Fourth Circuits all share
one version of a First Amendment retaliation claim.Petitioners claim that the Sixth, Ninth, and Tenth Circuits share
another version of what elements make up a First Amendment retaliation
claim.Petitioners then suggest that by
being a member of this former group of circuits, that the Fifth Circuit is
“squarely in conflict with the holding of the Sixth, Ninth, and Tenth
Circuits.”Pet’r Br. 17-18.This is incorrect.

Keenan, in fact, is not squarely in conflict with any of the courts or
cases Petitioners claim.In its
decision, the Fifth Circuit states that “the settled law of other circuits,
which we endorse, holds that to establish a First Amendment retaliation
claim...[plaintiffs] must show that (1) they were engaged in constitutionally
protected activity, (2) the defendants’ actions caused then to suffer an injury
that would chill a person of ordinary firmness from continuing to engage in
that activity, and (3) the defendants’ adverse actions were substantially
motivated against the plaintiff’s constitutionally protected conduct.”Keenan, 290 F.3d at 258.The second element articulated in Keenan
is the same element articulated in the Sixth Circuit (Bloch v. Ribar,
156 F.3d 673, 681 (6th Cir. 1998)), the Ninth Circuit (Mendocino
Environmental Center v. Mendocino County, 192 F.3d 1283, 1300 (9th
Cir. 1999)) and the Tenth Circuit (Smith v. Plati, 258 F.3d 1167, 1176
(10th Cir. 2001)).Petitioners’ use of Keenan as evidence of a significant circuit
split is clearly erroneous.

Moreover, a thorough reading of Keenan shows that no
meaningful conflict exists as to the express language or to the outcome of the
cases.As stated above, the Fifth
Circuit utilized the “ordinary firmness” element in holding what the plaintiffs
had to prove in a First Amendment retaliation claim.The Keenan court goes on to state that the second
retaliation element “requires some showing that the plaintiffs’ exercise of
free speech has been curtailed.”Keenan,
290 F.3d at 259.By doing this, the
Fifth Circuit effectively demonstrated that there is one test for retaliation
claims and that test includes both objective and subjective factors.Whether articulated or not, each of the
cases cited by Petitioners involve both objective and subjective elements.While the tests used by the courts in Bloch,
Mendocino and Smith specifically refer to the “ordinary
firmness”, or objective element, each of those cases required specific,
subjective evidence of retaliation.See
Bloch, 156 F.3d at 681 (the release of the private details of the rape
“damaged them by chilling their right to freely criticize a public official.”),
Mendocino, 156 F.3dat 1301-02
(the particular inmate’s reputation and the guard’s reason for punishment), Smith,
258 F.3d at 1177 (defendant’s actions not enough to be considered retaliatory
action).

As such, because no meaningful difference exists between

the circuits, Petitioners’ claim that a split justifies a writ of
certiorari is without merit.

CONCLUSION

For the foregoing reasons, Respondents respectfully request
that this petition for writ of certiorari be denied.

Respectfully submitted,

Larry Klayman*

Paul J. Orfanedes

James F. Peterson

JUDICIAL WATCH, INC.

501 School Street, S.W.

Suite 725

Washington, D.C.20024

(202) 646-5172

Counsel for Respondents

October 21, 2002

* Denotes Counsel of Record

[1]Petitioners argue for the first time that a criminal
referral may not have been required in this particular circumstance.Pet’r Br. 13 n.6.This is a factual matter that should have been raised at an
earlier stage.

[2]The Complaint, of course, alleges numerous additional
significant facts.In particular, the
high-level contacts between DOE and the FBI to discuss the interrogation and
the searchwill establish that the
retaliation against Trulock extended to the highest levels of the government.

[3]Petitioners are perplexed by what they view as a
discrepancy between the publication date of the article (July 31, 2000), and
the date of the search (July 14, 2000).As alleged in the Complaint, the actual date the magazine became
available is just days before the date of the FBI search.As Petitioners are probably aware, many
periodicals are dated after the time that they become available in print.Thus, this factual matter has no bearing on
the Petition at issue.